Dobie v. New Haven ( 2023 )

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WILLIAM DOBIE v. CITY OF NEW HAVEN ET AL.
(SC 20623)
Robinson, C. J., and McDonald, D’Auria, Mullins and Ecker, Js.
Syllabus
Pursuant to statute (§ 52-557n (a) (1)), ‘‘[e]xcept as otherwise provided by
law, a political subdivision of the state shall be liable for damages to
person or property caused by . . . [t]he negligent acts or omissions of
such political subdivision or any employee . . . thereof acting within
the scope of his employment or official duties . . . provided, no cause
of action shall be maintained for damages resulting from injury to any
person or property by means of a defective road . . . except pursuant
to section 13a-149.’’
Pursuant further to statute (§ 13a-149), ‘‘[a]ny person injured in person or
property by means of a defective road . . . may recover damages from
the party bound to keep it in repair.’’
The plaintiff sought to recover damages for personal injuries he sustained
in connection with an incident on a municipal road maintained by the
named defendant, the city of New Haven. The plaintiff had been driving
his vehicle behind a snowplow, operated by a city employee, that dis-
lodged a manhole cover a few seconds before the incident. The plaintiff
alleged in his complaint, pursuant to § 52-557n (a) (1), that the snowplow
operator had negligently dislodged the manhole cover, which then
became airborne, lodged under the plaintiff’s vehicle, and caused the
plaintiff to lose control of his vehicle and to sustain injuries. The city
filed a pretrial motion to dismiss, claiming that the trial court lacked
subject matter jurisdiction because § 13a-149 provided the exclusive
remedy for the plaintiff’s injuries, and the plaintiff had failed to comply
with that statute’s notice provisions. The trial court denied the pretrial
motion, reasoning that the complaint alleged that the plaintiff’s injuries
were caused by the negligence of the snowplow operator rather than
by a defect in the road. At trial, however, the plaintiff’s testimony differed
from the allegations in his complaint, insofar as he testified that his
injuries occurred when he drove his vehicle into the open manhole itself
and that the manhole cover never lodged under his vehicle. The jury
returned a verdict for the plaintiff, and the city filed a posttrial motion
to dismiss, renewing the claims that it had raised in its pretrial motion.
The trial court denied the posttrial motion to dismiss and rendered
judgment in accordance with the jury verdict. The city thereafter
appealed to the Appellate Court from the trial court’s judgment. Before
the Appellate Court, counsel for the city conceded that the trial court
had properly denied the city’s pretrial motion to dismiss. Nevertheless,
the Appellate Court reversed the trial court’s judgment, concluding, inter
alia, that the plaintiff’s sole remedy was an action pursuant to § 13a-
149 and that, because the plaintiff had failed to satisfy the notice require-
ments of that statute, the trial court lacked subject matter jurisdiction.
On the granting of certification, the plaintiff appealed to this court. Held:
1. The concession by the city’s counsel before the Appellate Court that the
trial court had properly denied its pretrial motion to dismiss did not
constitute a concession that the trial court had correctly decided the
city’s posttrial motion to dismiss:
The rules and procedures that apply to a trial court’s determination
concerning its subject matter jurisdiction depend on the state of the
record at the time the motion to dismiss for lack of jurisdiction is filed.
The trial court, in deciding the city’s posttrial motion, was required to
consider any undisputed facts established at trial, and the facts estab-
lished at trial differed from those that the plaintiff alleged in his complaint
and included the plaintiff’s own testimony that his injuries occurred
when he drove his vehicle into the uncovered manhole and that the
manhole cover had not lodged under his vehicle.
Accordingly, the record before the trial court when it addressed the
city’s pretrial motion and the record before the court when it addressed
the city’s posttrial motion did not involve the same underlying facts,
and, thus, there was no merit to the plaintiff’s claim that counsel’s
concession that the trial court had properly denied the city’s pretrial
motion equated to a concession that the court properly denied the city’s
posttrial motion.
2. The Appellate Court correctly concluded that § 13a-149 was the plaintiff’s
sole remedy under the facts and circumstances of the case, and, because
the plaintiff had not complied with the notice requirements of that
statute, the Appellate Court properly reversed the trial court’s judgment
and remanded the case with direction to grant the city’s posttrial motion
to dismiss:
It was of no consequence that the city employee’s negligence may have
caused the removal of the manhole cover, as the statutes and case law
made clear that, if a plaintiff’s damages result from injury to person or
property by means of a defective road, irrespective of whether those
means were created negligently, the plaintiff’s exclusive remedy is
§ 13a-149.
Moreover, in light of its prior holdings that depressions in roadways,
such as potholes, constitute highway defects, this court concluded that
an uncovered, open manhole constitutes a highway defect as a matter
of law.
Furthermore, there was no merit to the plaintiff’s claim that requiring
his action to be brought under § 13a-149 left him without a remedy, the
plaintiff having confused the idea of being left without a remedy and
the difficulty in successfully proving the elements of the remedy afforded
to him by law, as the plaintiff plausibly could have contended, on the
basis of the evidence adduced at trial, that the city might have had notice
of the uncovered manhole and a reasonable opportunity to fix that defect
if the snowplow driver had stopped his truck immediately after hitting
the manhole cover, and the plaintiff’s failure or inability to prove those
elements or any other element of the statute did not negate the legisla-
ture’s choice to make § 13a-149 the exclusive remedy by which a plaintiff
may recover for damages resulting from injury to person or property by
means of a highway defect.
Argued December 21, 2022—officially released April 18, 2023
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the named defendant’s alleged negli-
gence, and for other relief, brought to the Superior
Court in the judicial district of New Haven and tried
to the jury before Ozalis, J.; verdict for the plaintiff;
thereafter, the court denied the named defendant’s
motions to set aside the verdict and to dismiss, and
rendered judgment in accordance with the verdict, from
which the named defendant appealed to the Appellate
Court, Elgo, Cradle and Alexander, Js., which reversed
the trial court’s judgment and remanded the case with
direction to grant the named defendant’s posttrial
motion to dismiss and to render judgment thereon, and
the plaintiff, on the granting of certification, appealed
to this court. Affirmed.
Brendan K. Nelligan, with whom, on the brief, was
Leann Riether, for the appellant (plaintiff).
Thomas R. Gerarde, with whom, on the brief, was
Beatrice S. Jordan, for the appellee (named defendant).
Opinion
D’AURIA, J. In this certified appeal, we are asked to
decide whether an open manhole on a public roadway,
uncovered after a snowplow driver negligently knocked
off its cover only seconds before a motorist drove into
the manhole, constitutes a ‘‘highway defect,’’ making
General Statutes § 13a-149, our highway defect statute,
the motorist’s exclusive remedy for injuries he sus-
tained as a result. The plaintiff, William Dobie, appeals
from the judgment of the Appellate Court, which
reversed the trial court’s judgment, rendered after a
jury verdict in his favor, on one count of negligence as
against the named defendant, the city of New Haven.1
The Appellate Court held that the highway defect stat-
ute was in fact the plaintiff’s exclusive remedy. Dobie
v. New Haven, 204 Conn. App. 583, 595, 254 A.3d 321(2021). We affirm the Appellate Court’s judgment.
The following undisputed facts and procedural his-
tory are relevant to this appeal. The plaintiff was driving
his vehicle the morning after snow had fallen. Patches
of snow remained on the roadways. As he operated his
vehicle on Canner Street, a municipal roadway in New
Haven, the plaintiff followed a snowplow operated by
an employee of the defendant. The snowplow proceeded
through an intersection, with the plaintiff’s vehicle fol-
lowing approximately two to three car lengths behind.
The plaintiff heard a loud bang and, seconds later, his
vehicle fell into an open manhole. The vehicle was dam-
aged and rendered inoperable, and he sustained injur-
ies. When his vehicle came to rest about ten feet past
the open manhole, the plaintiff observed a manhole
cover in the roadway between the manhole and his
vehicle. The snowplow then came back around the
block and stopped at the accident location. The driver
told the plaintiff that the snowplow had hit the manhole
cover and knocked it off.
The plaintiff brought this civil action and, in his sum-
mons, designated the case type as ‘‘T 12,’’ which repre-
sents the description for ‘‘Defective Premises - Public
- Other.’’ The operative complaint alleged one count of
negligence on the part of the defendant’s snowplow
operator pursuant to General Statutes § 52-557n, which
governs tort liability of political subdivisions of the
state and their employees, officers, and agents. The
complaint alleged that the snowplow operator, as an
employee of the defendant, had negligently operated
his vehicle by dislodging a manhole cover, which then
lodged under the plaintiff’s vehicle, causing him to lose
control of it. The plaintiff did not bring a separate negli-
gence action against the snowplow operator. The defen-
dant moved to dismiss the complaint for lack of subject
matter jurisdiction, arguing that the single negligence
count ‘‘allege[d] facts that state a claim of injury arising
out of a highway defect, for which . . . § 13a-149 pro-
vides the exclusive remedy. The court lacks subject
matter jurisdiction because the plaintiff failed to give
notice of his injuries pursuant to § 13a-149.’’ The trial
court sustained the plaintiff’s objection to the defen-
dant’s motion to dismiss, concluding that ‘‘[t]he [opera-
tive] complaint allege[d] that the plaintiff’s injuries were
caused by the negligence of the snowplow driver rather
than by a defect in the road.’’ (Internal quotation marks
omitted.) Dobie v. New Haven, supra, 204 Conn. App.
586.
The matter proceeded to a jury trial during which
the plaintiff’s testimony differed from the allegation in
his complaint. Specifically, the plaintiff testified that he
drove over the dislodged manhole cover after driving
into the manhole itself. As a result of having driven into
the open manhole, the plaintiff sustained injuries and
his vehicle was damaged. The plaintiff further testified
that the manhole cover did not become lodged under
his vehicle at any point. There also was no evidence at
trial that driving over the manhole cover itself caused
any damage to the plaintiff’s vehicle or caused him to
lose control of his vehicle. The jury returned a verdict in
the plaintiff’s favor, finding that the snowplow operator
was negligent and that his negligence proximately
caused the plaintiff’s injuries.
The defendant filed a posttrial motion to dismiss,
renewing its claim that the trial court lacked subject
matter jurisdiction because § 13a-149 provides the sole
remedy for the plaintiff’s injuries and the plaintiff failed
to comply with the statute’s notice requirements. The
defendant claimed that the plaintiff’s testimony at trial
established that he was injured by means of an open
manhole, which the defendant argued is a highway defect.
The court denied the defendant’s motion, ruling that
the evidence at trial clearly established that the plaintiff
was asserting a negligence claim against the city, not
a defective highway claim.2 The defendant appealed.
In its brief to the Appellate Court, the defendant con-
tested the trial court’s denial of its pretrial and posttrial
motions to dismiss. However, at oral argument before
the Appellate Court, the defendant’s appellate counsel
conceded that the trial court had correctly decided the
pretrial motion because, if the manhole cover had
become airborne and struck the plaintiff’s vehicle, as
the plaintiff pleaded in his complaint, then the com-
plaint would have appropriately alleged a claim for neg-
ligence under § 52-557n (a).
The defendant contended before the Appellate Court
that, because the evidence at trial had established that
the plaintiff sustained injuries when he drove into the
uncovered manhole, his damages, as a matter of law,
resulted from injuries to his person or property by
means of a ‘‘highway defect’’ within the meaning of
§ 13a-149. Id., 587–88. Specifically, the defendant argued
that the uncovered manhole was an ‘‘object in the travel
path that necessarily obstructed/hindered the use of the
road for the purpose of traveling,’’ the definition of
highway defect that this court has consistently used.
See, e.g., McIntosh v. Sullivan, 274 Conn. 262, 268–69,
875 A.2d 459 (2005); Hewison v. New Haven, 34 Conn.
136, 142 (1867). Because the plaintiff did not comply
with the notice requirements of that statute, the defen-
dant claimed that the trial court improperly denied its
posttrial motion to dismiss. Dobie v. New Haven, supra,204 Conn. App. 588.
The Appellate Court agreed with the defendant and
reversed the trial court’s judgment, holding that ‘‘the
plaintiff’s injuries were caused by a collision between
his vehicle and an object in the traveled path that neces-
sarily obstructed or hindered the use of the road for
the purpose of traveling—namely, an open manhole.’’
Id., 595. As a result, the court held that the plaintiff’s
sole remedy was an action pursuant to the highway
defect statute. Id. The Appellate Court further held that,
because the plaintiff had failed to comply with the
notice provisions of § 13a-149, the trial court lacked
subject matter jurisdiction over the action. Id. There-
fore, the Appellate Court reversed the trial court’s judg-
ment and directed the trial court on remand to grant the
defendant’s posttrial motion to dismiss and to render
judgment accordingly. Id.
The plaintiff sought certification to appeal, which
we granted on the following two issues: (1) ‘‘Did the
Appellate Court correctly conclude that . . . § 13a-149
was the plaintiff’s sole remedy under the facts and cir-
cumstances of the case?’’ And (2) ‘‘[d]id the Appellate
Court correctly conclude that the trial court had improp-
erly denied the defendant’s posttrial motion to dismiss
when the defendant conceded at oral argument that the
trial court had properly denied the defendant’s pretrial
motion to dismiss?’’ Dobie v. New Haven, 338 Conn.
901, 258 A.3d 90 (2021). We answer both questions in
the affirmative and therefore affirm the Appellate
Court’s judgment.
I
Because it helps to frame the first certified issue, we
address the second certified issue first. Specifically, the
plaintiff argues that the defendant’s pretrial and post-
trial motions to dismiss for failure to bring this action
pursuant to the highway defect statute were indistin-
guishable. Therefore, he argues that the defendant’s
concession at oral argument before the Appellate Court
that the trial court properly denied the pretrial motion,
along with the defendant’s failure to meaningfully dis-
tinguish between the motions to dismiss, equates to a
concession that the trial court also properly denied the
posttrial motion to dismiss. The defendant responds
that the record before the trial court at the time of
the posttrial motion ‘‘presented a markedly different
situation’’ that required the court to consider undis-
puted facts established at trial, not merely the allega-
tions in the complaint. We agree with the defendant.
First, we must acknowledge that ‘‘[t]rial courts
addressing motions to dismiss for lack of subject matter
jurisdiction . . . may encounter different situations,
depending on the status of the record in the case. . . .
[L]ack of subject matter jurisdiction may be found in
any one of three instances: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts. . . . Different rules and procedures
will apply, depending on the state of the record at the
time the motion is filed.’’ (Internal quotation marks
omitted.) Columbia Air Services, Inc. v. Dept. of Trans-
portation, 293 Conn. 342, 347, 977 A.2d 636 (2009).
When deciding the defendant’s pretrial motion to dis-
miss, the trial court properly considered only the allega-
tions of the complaint, construing the facts alleged in
the manner ‘‘most favorable to the [plaintiff].’’ (Internal
quotation marks omitted.) Id. The plaintiff’s complaint
alleged that the snowplow had hit the manhole, causing
the manhole cover to propel into the air and lodge under
the plaintiff’s vehicle, which caused him to lose control
of the vehicle. By contrast, when deciding the defen-
dant’s posttrial motion to dismiss, the court was obliged
to consider any undisputed facts established at trial.
The facts established at trial differed from the facts
alleged in the plaintiff’s complaint. Specifically, based
on the plaintiff’s own testimony, it was undisputed that
the plaintiff had driven his vehicle into the open man-
hole, causing injury to himself and damage to the vehi-
cle. The manhole cover did not lodge under his vehicle.
The record before the trial court when it addressed the
pretrial motion and the posttrial motion did not involve
the same underlying facts. Thus, the defendant’s con-
cession that the trial court had decided the pretrial
motion to dismiss properly does not constitute a con-
cession that it decided the posttrial motion to dismiss
properly as well.
II
The principal issue in this appeal requires this court
to review the trial court’s ruling on a motion to dismiss.
Our standard of review is well established. ‘‘A motion
to dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court.’’ (Internal quotation
marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866
A.2d 599 (2005). A trial court’s determination of its
subject matter jurisdiction is a question of law that
we review de novo. See, e.g., Angersola v. Radiologic
Associates of Middletown, P.C., 330 Conn. 251, 264, 193
A.3d 520 (2018).
The applicable law governing a municipality’s liability
for negligence and highway defects is also well estab-
lished. At common law, municipalities could not be held
liable for the negligence of their employees. See, e.g.,
Spears v. Garcia, 263 Conn. 22, 29, 818 A.2d 37 (2003).
Similarly, as a general matter, a municipality was immune
from liability for highway defects. See, e.g., Hornyak
v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949) (‘‘[a]
town is not liable for highway defects unless made so
by statute’’).
The legislature has abrogated both principles in a
limited fashion. ‘‘[Section] 52-557n abandons the com-
mon-law principle of municipal [governmental] immu-
nity and establishes the circumstances in which a
municipality may be liable for damages. . . . One such
circumstance is a negligent act’’ of a municipal employee.
Ventura v. East Haven, 330 Conn. 613, 629, 199 A.3d
1 (2019). A municipality’s immunity from liability for
highway defects also ‘‘has been legislatively abrogated
by § 13a-149, which allows a person to recover damages
against a municipality for injuries caused by a defective
highway.’’ Martin v. Plainville, 240 Conn. 105, 109, 689
A.2d 1125 (1997).
The plaintiff brought his claim under § 52-557n (a)
(1), the municipal negligence statute, which provides
in relevant part: ‘‘Except as otherwise provided by law,
a political subdivision of the state shall be liable for
damages to person or property caused by: (A) The negli-
gent acts or omissions of such political subdivision or
any employee, officer or agent thereof acting within
the scope of his employment or official duties . . . .’’
(Emphasis added.) This statute provides a specific
exception, however, namely, that ‘‘no cause of action
shall be maintained for damages resulting from injury
to any person or property by means of a defective road
or bridge except pursuant to section 13a-149.’’ General
Statutes § 52-557n (a) (1). ‘‘We have construed § 52-
557n . . . to provide that, in an action against a munici-
pality for damages resulting from a highway defect, the
defective highway statute is the plaintiff’s exclusive
remedy.’’ Ferreira v. Pringle, 255 Conn. 330, 341, 766
A.2d 400 (2001). Section 13a-149, in turn, provides in
relevant part that ‘‘[a]ny person injured in person or
property by means of a defective road or bridge may
recover damages from the party bound to keep it in
repair. . . . No action for any such injury shall be main-
tained against any . . . city . . . unless written notice
of such injury and a general description of the same,
and of the cause thereof and of the time and place of
its occurrence, shall, within ninety days thereafter be
given to . . . the clerk of such city . . . .’’ If a plaintiff
fails to comply with the notice provisions of the statute,
the trial court does not have subject matter jurisdiction
over the matter. See Ferreira v. Pringle, supra, 344.
The plaintiff argues that he properly brought his
action under § 52-557n, alleging that the circumstances
of the present case clearly implicate the negligent opera-
tion of a motor vehicle. Therefore, he contends, this
case is not governed by § 13a-149. Specifically, the plain-
tiff argues that, because the snowplow driver, an
employee of the defendant, knocked the cover off the
manhole, the operative issue is the driver’s negligence,
and, therefore, it was proper to litigate the plaintiff’s
claim as a negligence action brought pursuant to § 52-
557n. The defendant counters that an uncovered man-
hole is ‘‘[an] object in, upon, or near the traveled path,’’
the definition our case law gives to the phrase highway
defect and, therefore, that the plaintiff’s claimed dam-
ages ‘‘result[ed] from injury . . . by means of a defec-
tive road’’ and is governed exclusively by § 13a-149.
The problem with the plaintiff’s argument is that,
under our statutes and case law, the fact that a munici-
pal employee’s negligence might have caused the defect
has been taken out of the equation. If the plaintiff’s
damages ‘‘result[ed] from injury to any person or prop-
erty by means of a defective road,’’ irrespective of
whether those ‘‘means’’ were created negligently, then
his remedy is exclusive: ‘‘[N]o cause of action shall be
maintained . . . except pursuant to section 13a-149.’’
(Emphasis added.) General Statutes § 52-557n (a) (1).
‘‘[T]he manner in which a defect is created in and of
itself has no bearing on the town’s liability under the
statute.’’ Machado v. Hartford, 292 Conn. 364, 378, 972
A.2d 724 (2009). That is to say, even if we accept, as
we must, the jury’s finding that the snowplow driver
was negligent, the highway defect statute still provides
the plaintiff’s exclusive remedy for injuries sustained
as a result ‘‘of a defective road or bridge . . . .’’ General
Statutes § 13a-149. This brings the plaintiff’s claim both
within the exception to § 52-557n, governing the defen-
dant’s liability for its employees’ negligence, and within
§ 13a-149, governing the defendant’s liability for high-
way defects. The dispositive question, then, is whether
the ‘‘means’’ by which the injury was caused in fact
was a ‘‘defective road.’’ Two of our precedents most
particularly illustrate this point.
The plaintiff in Machado brought an action against
the defendant municipality for injuries she sustained
when the car she was driving hit a large depression in
the road that developed as a result of road repairs
a third-party contractor had performed. Machado v.
Hartford, supra, 292 Conn. 366. After hitting the depres-
sion, the plaintiff’s car became airborne, landing on a
manhole cover projecting six to eight inches above the
roadway. Id. The plaintiff brought a highway defect
claim pursuant to § 13a-149. Id. The defendant claimed
that it could not be liable because the trial court found
that the third party’s negligence had caused the plain-
tiff’s injuries. Id. This court disagreed with the defen-
dant, holding that ‘‘[i]t is settled law in this state that
the liability of [a town] under § 13a-149 is purely for
breach of a statutory duty and does not arise from
negligence. . . . Such liability represents a penalty for
the town’s failure to perform adequately its statutory
duty to repair its roads, and it is solely the town’s failure
in that regard that renders it liable. . . . Accordingly,
because municipal liability under § 13a-149 is predi-
cated exclusively on the town’s failure to carry out its
statutory duty, it follows that the manner in which a
defect is created in and of itself has no bearing on the
town’s liability under the statute. Rather, it is the
existence of the defect and the town’s actual or con-
structive knowledge of and failure to remedy that defect
that are of primary importance in making out a prima
facie case of municipal liability under § 13a-149.’’
(Citations omitted; emphasis altered; internal quotation
marks omitted.) Id., 377–78.
The court went on to explain that, ‘‘[w]hen the defect,
once created, causes the accident in the absence of any
other intervening factors . . . the injuries in that case
would be caused solely by means of the defect, even
though that defect may originally have been created by
the negligence of a third party.’’ (Emphasis in original.)
Id., 380. Just as a third party’s negligent performance
of the road repairs created the defect in Machado, the
negligence of the defendant’s employee in the present
case created the defect at issue. Both scenarios impli-
cate § 13a-149.
In Ferreira, the plaintiff brought an action pursuant
to § 52-557n (a) for injuries he sustained after tripping
on a remnant of a severed steel signpost that was
embedded in a grassy embankment on the side of a
public roadway. Ferreira v. Pringle, supra, 255 Conn.
332, 335. The plaintiff alleged that the defendant munici-
pal employees, in the course of their employment, had
been negligent in maintaining the grassy embankment
on the shoulder of the road, thereby causing his injuries.
Id., 335–36. The trial court dismissed the action for lack
of subject matter jurisdiction, holding that, even when
accepting as true all of the plaintiff’s allegations, includ-
ing his allegations of the defendants’ negligence, his
injuries as a matter of law resulted from a highway
defect—the embedded steel signpost—and § 13a-149
was his exclusive remedy. Id., 337–38. This court upheld
the trial court’s dismissal of the action, holding that the
‘‘facts conclusively establish[ed], as a matter of law, that
the condition allegedly causing the plaintiff’s injuries
constitute[d] a highway defect . . . .’’ Id., 345. Although
the plaintiff had filed a notice of intention to sue the
town and its employees pursuant to General Statutes
§ 7-465 ‘‘ ‘and other relevant statutes’ ’’ for injuries he
sustained as a result of the allegedly negligent mainte-
nance of the grassy highway shoulder; id., 332–33; he
failed to comply with the notice requirements of § 13a-
149. Id., 332. Thus, we held that the trial court lacked
jurisdiction over the action. Id., 332, 354–55.
Our case law, therefore, makes clear that, when applying
§ 13a-149, courts have not had to hypothesize as to what
created the highway defect that caused a plaintiff’s
injuries, which would create an additional burden that
the statute does not require. Instead, the question sim-
ply is whether the plaintiff was injured ‘‘by means of a
defective road . . . .’’3 General Statutes § 13a-149.
What constitutes a ‘‘defective road,’’ or what is more
commonly referred to as a ‘‘highway defect,’’ and, there-
fore, which statute governs a motorist’s claim for dam-
ages against a municipality, have been the subject of a
great deal of litigation. We have long held that a ‘‘high-
way defect is [a]ny object in, upon, or near the traveled
path, which would necessarily obstruct or hinder one
in the use of the road for the purpose of traveling
thereon, or which, from its nature and position, would
be likely to produce that result . . . .’’ (Internal quota-
tion marks omitted.) Ferreira v. Pringle, supra, 255
Conn. 342; see also id., 356 (‘‘[t]he term ‘defect’ and the
adjective ‘defective’ have been used in statutes defining
the right to recover damages for injuries due to public
roads or bridges in Connecticut since 1672’’). ‘‘Whether
a condition in a highway constitutes a defect must be
determined in each case on its own particular circum-
stances.’’ (Internal quotation marks omitted.) Giannoni
v. Commissioner of Transportation, 322 Conn. 344,
360, 141 A.3d 784 (2016). This determination ‘‘may involve
issues of fact, but whether the facts alleged would, if
true, amount to a highway defect according to the stat-
ute is a question of law . . . .’’ (Internal quotation
marks omitted.) Ferreira v. Pringle, supra, 341–42.
Many of our highway defect cases have arisen as a
result of conditions caused by snowy or icy roadways.
In those cases, it was undisputed that the defect at
issue fell within the scope of § 13a-149. See, e.g., Pratt
v. Old Saybrook, 225 Conn. 177, 178–79, 621 A.2d 1322(1993); Lukas v. New Haven, 184 Conn. 205, 206–207,
439 A.2d 949 (1981). In other cases, this court has held
that falling tree limbs; see Comba v. Ridgefield, 177
Conn. 268, 269–70, 413 A.2d 859 (1979); and falling rocks
and debris; see McIntosh v. Sullivan, supra, 274 Conn.
285; that strike traveling cars are not considered high-
way defects. Several cases have established that man-
hole covers may constitute highway defects in certain
circumstances. See, e.g., Machado v. Hartford, supra,292 Conn. 366 (defendant city was liable for injuries
plaintiff sustained when vehicle ‘‘hit a large depression
in the roadway’’ and then collided with exposed man-
hole cover); Federman v. Stamford, 118 Conn. 427,
429–30, 172 A. 853 (1934) (improperly installed manhole
cover); Dudley v. Commissioner of Transportation,
191 Conn. App. 628, 646, 216 A.3d 753 (‘‘allegedly defec-
tive manhole cover is within the definition of ‘highway
defect’ ’’), cert. denied, 333 Conn. 930, 218 A.3d 69(2019).
Given that we have held that depressions in a road-
way—potholes—are highway defects, we have no trou-
ble concluding that it logically follows that an
uncovered, open manhole, as a matter of law, is also
a highway defect. See Cuozzo v. Orange, 315 Conn.
606, 617–18, 109 A.3d 903 (2015) (accepting that pothole
is highway defect but focusing analysis on whether
driveway at issue was private or public roadway); Steele
v. Stonington, 225 Conn. 217, 221, 622 A.2d 551 (1993)
(§ 13a-149 was plaintiff’s sole remedy for injuries
caused by ‘‘series of potholes and bumps in the road’’
that caused him to lose control of his motorcycle (inter-
nal quotation marks omitted)).
The plaintiff argues that requiring his claim to be
brought as a highway defect action would ‘‘yield
unworkable results.’’ He hypothesizes that, under the
Appellate Court’s reasoning, if a motorist’s vehicle hit
a municipal vehicle that had passed a stop sign without
stopping, the municipal vehicle would be ‘‘obstructing
the roadway,’’ as defined by § 13a-149, or that, if a hose
fell from a firetruck and struck a vehicle traveling
behind the firetruck, § 13a-149 also would be impli-
cated. The plaintiff is mistaken. In Comba v. Ridgefield,
supra, 177 Conn. 268, this court held that a tree limb
that hung over the traveled portion of a highway and
broke off, falling onto the plaintiff’s vehicle, was not a
‘‘defect’’ within the meaning of § 13a-149. Id., 271–72.
Although this court has recognized that a ‘‘defect need
not be a part of the roadbed itself,’’ objects that ‘‘have
no necessary connection with the roadbed or public
travel, which expose a person to danger . . . do not
ordinarily render the road defective.’’ Id., 270; see also
Hewison v. New Haven, supra, 34 Conn. 143. This distin-
guishes the present case from the fallen tree limb in
Comba, and the hose that fell off a firetruck in the
plaintiff’s hypothetical. Additionally, this court has never
held that a moving vehicle can be a highway defect,
and, contrary to the plaintiff’s assertions, our holding
today does not necessitate that conclusion. There is no
claim in this case that the plaintiff was harmed directly
by a moving vehicle. Here, the plaintiff’s damages
resulted from injuries to his ‘‘person or property by
means of’’ an open manhole, i.e., a hole in the roadbed
itself.4 General Statutes § 13a-149.
Relying on Prato v. New Haven, 246 Conn. 638, 717
A.2d 1216 (1998), the plaintiff also argues that he would
be ‘‘left without a remedy’’ if he were compelled to
bring an action under § 13a-149. In Prato, this court
held that a plaintiff who had sustained injuries in a
bonfire explosion on a city street could not recover
under § 13a-149. See id., 639–40, 648. The court held
that, because the injuries happened ‘‘within, at most, a
few minutes of the ignition of the bonfire,’’ the defen-
dant municipality did not have, and could not have had,
notice of the alleged defect. Id., 640. The plaintiff’s
argument, however, confuses the idea of being ‘‘left
without a remedy’’ with the difficulty in successfully
proving the elements of the remedy that the law
affords him.
To prove liability under the highway defect statute,
a plaintiff must prove ‘‘(1) that the highway was defec-
tive as claimed; (2) that the defendant actually knew
of the particular defect or that, in the exercise of its
supervision of highways in the city, it should have
known of that defect; (3) that the defendant, having
actual or constructive knowledge of this defect, failed
to remedy it having had a reasonable time, under all
the circumstances, to do so; and (4) that the defect
must have been the sole proximate cause of the injuries
and damages claimed . . . .’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Machado v. Hartford,
supra, 292 Conn. 376. ‘‘It is the settled law of our state
that [i]n a case seeking recovery for damage from
defects in a highway, it is a prerequisite of liability that
the authority charged with maintenance shall have had
either actual notice of the defect or constructive notice
through its existence for such a length of time that it
would have been known in the exercise of reasonable
care, and a reasonable opportunity afforded to remedy
it.’’ (Internal quotation marks omitted.) Baker v. Ives,
162 Conn. 295, 305, 294 A.2d 290 (1972).
Based on the evidence presented at trial in the negli-
gence action, which the plaintiff could have supple-
mented had he pursued this action as a highway defect
case, he plausibly could have contended that the defen-
dant had notice of the uncovered manhole. For exam-
ple, the plaintiff testified that, soon after his vehicle
went into the open manhole, the snowplow driver, hav-
ing circled the block, approached to inform the plaintiff
that, while plowing, he had knocked the cover off the
manhole. This court has previously held, in a highway
defect case involving a manhole, that the fact that ‘‘the
defective condition [that] produced [the] plaintiff’s
injury was due to the act of [the defendant municipali-
ty’s] own representatives . . . in itself would be suffi-
cient to impute to [the municipality] notice of that
[defective] condition.’’ Federman v. Stamford, supra,118 Conn. 430.
The evidence at trial also demonstrated that the plain-
tiff plausibly could have established that the defendant
would have had a reasonable opportunity to fix the
defect. Jeffrey Pescosolido, the defendant’s Director of
Public Works, testified at trial that, when a snowplow
driver ‘‘hit[s] something abruptly,’’ hears ‘‘a large noise
or [feels] something [different] in the truck than [nor-
mal] or [sees] something,’’ the driver is supposed to
stop. Dale Keep, who testified for the plaintiff as an
expert in snowplow operation and road maintenance
involving snow and ice, stated that the snowplow driver
should have immediately stopped the plow to determine
what had happened. Based on this evidence, the plaintiff
could have plausibly demonstrated that, if the snow-
plow driver had stopped his truck immediately after
hitting the manhole cover, the defendant might have
had a reasonable opportunity to remedy the defect.
We do not suggest that it would have been easy for
the plaintiff to prove that the defendant had sufficient
notice of, and opportunity to cure, the defect in the
present case. Similarly, and without commenting on the
facts of this case, it can be very difficult to prove the
element of sole proximate cause under some circum-
stances. ‘‘[T]he municipal highway defect [statute]
require[s] that the highway defect is the sole proximate
cause of the plaintiff’s injuries, which precludes recov-
ery against . . . a municipality in the event that the
injury was caused by a combination of the defect and
negligence on the part of the [plaintiff] or a third party.’’
Himmelstein v. Windsor, 304 Conn. 298, 313, 39 A.3d
1065 (2012); see also Williamson v. Commissioner of
Transportation, 209 Conn. 310, 321, 551 A.2d 704 (1988)
(‘‘if there is any negligence by the [plaintiff], even [1]
percent, she may not recover’’ (emphasis added; inter-
nal quotation marks omitted)). Additionally, if a plaintiff
fails to comply with the notice requirements of the
statute, he cannot maintain a cause of action. See, e.g.,
Ferreira v. Pringle, supra, 255 Conn. 355. A plaintiff’s
failure or inability to prove any of these or other ele-
ments, however, does not negate the fact that § 13a-
149 is the exclusive remedy the legislature has provided
by which he can recover for injuries resulting by means
of a highway defect. The plaintiff cites no highway
defect case—and we have found none—that says oth-
erwise.
The Appellate Court correctly concluded that § 13a-
149 provides the plaintiff’s sole remedy because he sus-
tained injuries that resulted from a highway defect—
an uncovered manhole. Therefore, because the plaintiff
did not comply with the notice requirements of the
statute, the Appellate Court properly reversed the trial
court’s judgment and remanded the case with direction
to grant the defendant’s posttrial motion to dismiss.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The plaintiff also named his insurance carrier, the Geico General Insur-
ance Company, as a defendant in his complaint. At trial, the court directed
a verdict in favor of the insurer, which the plaintiff does not challenge in
this appeal. For purposes of this appeal, we refer to the city of New Haven
as the defendant.
2
The defendant also filed a posttrial motion to set aside the verdict,
arguing that the plaintiff had failed to prove that the snowplow driver was
negligent or that the plaintiff was an identifiable victim subject to imminent
harm. The trial court denied the motion. The Appellate Court concluded
that the posttrial motion to dismiss was improperly denied and did not
address the motion to set aside the verdict. See Dobie v. New Haven, supra,
204 Conn. App. 585 n.2. Therefore, the trial court’s ruling on that motion is
not before us in this certified appeal.
3
The plaintiff must also prove that the defendant municipality was ‘‘bound
to keep [the road] in repair.’’ General Statutes § 13a-149. That issue is not
contested in this case. Both parties agree that the defendant had the responsi-
bility to maintain the roadway on which the plaintiff was injured.
4
In his reply brief to this court, the plaintiff resurrects the idea that
an ‘‘unsecured manhole cover’’ caused his injuries when his undisputed
testimony at trial showed that he was injured when his vehicle fell into the
open manhole in the road itself.